Magnitsky human rights act to violate the right to national self-determination

The U.S. tends to impose its own law on other sovereign nations. Today, this move has not only become obsolete but violated countries’ right to national self-determination. The new Global Magnitsky Human Rights Accountability Act is an example.

According to many foreign news agencies, U.S. President Barack Obama signed the last bill in his presidential term into law– S. 2943, the “National Defense Authorization Act for Fiscal Year 2017 (NDAA 2017)”. This law contains a human rights act named “Global Magnitsky Human Rights Accountability Act (hereinafter referred to as Magnitsky Act)”. Contrary to previous sanctions, which used to focus on condemning and restricting political and economic relations, especially economic aid for governments, the Magnitsky Act is aimed at individuals. For example, based on the “Annual Report to Congress on International Religious Freedom”, U.S. Government recommends that the Congress and President designate countries with serious breach of religious freedom as “Countries of Particular Concern (CPC).” The U.S. would oppose, condemn and reduce political and economic relations with CPC while the Magnitsky Act would allow the administration to apply human rights-based sanctions to individuals and officials regarded as violation of human rights and corruption in CPC.

The Magnitsky Act authorizes the President to: (1) impose U.S. entry sanctions against any foreign person, including official passport holders, and (2) block and prohibit transactions in property (in any forms) of any foreign person, who has been designated as breach of human rights and corruption. The President may terminate these sanctions under specified conditions and must report to Congress. According to this Act, “the President may impose sanctions…, on the basis of reliable evidence, against any individual” who is “responsible for extrajudicial killings, torture, or other gross violations of internationally recognized human rights committed against individuals in any foreign countries.” This Act will be valid for 6 years (since being signed).

Right after the “Global Magnitsky Human Rights Accountability Act” had been adopted, a number of countries opposed. In Vietnam, some individuals and cyber “civil society organizations” were so delighted. Some even recommended bad elements to send unreal information provided by religious organizations, cyber “civil society” and suppressed people, etc., to U.S. Department of State and the European Union to invoke the aforementioned sanctions.

So, where did the “Global Magnitsky Human Rights Accountability Act” originate from? Is it in line with today’s principles of international relations? As far as Vietnam is concerned, is this Act feasible and helpful to Vietnam-U.S. relations currently?

“The Magnitsky Act” originated from an event in Russia. In the 2008-2009 period, Mr. Magnitsky was imprisoned by Russian authorities for violation of law and died in prison. American radicals and people with anti-Russian sentiments blamed Russian authorities on human rights violations.

Sergei Magnitsky, a lawyer at a Moscow law firm, was arrested for law violations on November 24, 2008. He was later prosecuted and found guilty of tax evasion by a Moscow criminal court. Mr. Magnitsky died in a prison in Moscow on November 16, 2009 after nearly one year’s detention.

In order to punish Russian authorities, U.S. Congress adopted an act to impose sanctions on Russian individuals and officials, who was allegedly involved in Magnitsky’s death. Based on these sanctions, several members of the U.S. Congress, under the pressure of their voters, urged President Barack Obama to sign into law the “National Defense Authorization Act for Fiscal Year 2017.” The list of persons, groups and entities subject to these sanctions, however, was widened to include not only Russian officials relating to Sergei Magnitsky’s death, but all of individuals and officials in other countries. Consequently, it was named as the “Global human rights law” by the U.S.

It can be said that the Magnitsky Act represents a mistake of U.S. Congress and President. American evaluation of an affair abroad (in Russia or any country) in certain cases cannot guarantee scientific objectivity. Mr. Magnitsky’s arrest and trial at a public court according to Russian law was within the domestic jurisdiction of any state under the Charter of the United Nations. The sanctions against Russian officials, who were performing their duties, were unfair and violated their right to perform official duties.

The Magnitsky Act does not conform to principles of international relations. Indeed, Article 1, Paragraph 2 of the Charter of the United Nations declares that one of the purposes of the United Nations is to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples…” Given this Act, that U.S. imposes its law on other states is unacceptable. The Magnitsky Act, therefore, violated the principle of equal rights and self-determination of peoples as defined by the Charter of the United Nations.

Regarding international law on human rights, the Magnitsky Act has breached a number of conventions, especially the International Convention on Civil and Political Rights, adopted by the UN in 1966. Article 1 of the Convention defines that “All people have the right of self-determination. By virtue of that right, they freely determine their political status and freely pursue their economic, social and cultural development, an so on. The State Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations”. The Magnitsky Act, therefore, has violated the principle of “freely determining their own political status of peoples,” including political regimes (socialism, capitalism, constitutional monarchy, pluralism or monism), or the model for the governance of a state (separation of powers, division or coordination of powers, etc.,), including its legal system. In fact, nowadays some countries are still using whipping as a form of judicial punishment, or “chemical castration” to punish child sex offenders and pedophiles, and so on.

Obviously, the author does not intend to make any comments on another country’s legal system because this matter is decided by the main decision-making body of that country. It is highly possible that these countries must be aware of human rights. As time goes by, these regulations may change and this falls within the competence of each country.

Russian Foreign Ministry spokeswoman Maria Zakharova has rejected this Act shortly after its promulgation. She said: “U.S. enactment of the 2012 Magnitsky Act has undermined U.S. relations with the whole world. The Magnitsky Act signed by President Barack Obama has been not only against Russia, but the whole world.” Ms. Zakharova also noted that: “It is an old foreign policy tradition of Washington to use human rights as an excuse for putting pressure on undesirable governments.”

As far as Vietnam is concerned, this Act wouldn’t make any contributions to present Vietnam-U.S. relations and be feasible. World history during the 17th and 19th centuries demonstrated that while people in European countries and U.S. were entitled to certain degrees of citizenship and human rights after the “bourgeois democratic” revolution, people in Vietnam were under extreme oppression of colonialism and feudalism. Under the cover of spread of civilization and “protection of the free world,” the colonialists and imperialists waged many wars of aggression for decades, but no single developed country “shared human rights and democratic values” with Vietnamese people!

Our people’s human rights have only been operationalized since the August Revolution initiated and led by the Communist Party of Vietnam and President Ho Chi Minh in 1945. Human rights in Vietnam only came into being when our country gained independence and national sovereignty was secured. Our people’s citizenship and human rights were stipulated for the first time in the 1946 Constitution, the first Constitution of the Democratic Republic of Vietnam, the predecessor of the Socialist Republic of Vietnam.

During the past 7 decades with full of special historic periods, especially in wars of aggression, there were some limitations in securing human rights. However, the people’s human rights and citizenship have been promoted since national unification, in particular from the period from 1986 onwards.

The 2013 Constitution represents a special leap in legal terms of human rights in our society and country. Chapter 2 of this Constitution regarding “human rights and citizens’ fundamental rights and duties” has stipulated every aspect of human rights, in conformity with international conventions on human rights. Over the past few years, our National Assembly has made a number of new laws and amended and supplemented many old laws in the spirit of truly respecting and securing human rights. Administrative reform strategy should comply with principles of human rights, creating the most favorable conditions for people to enjoy and capitalize on their rights in political, economic, cultural and social fields. For example, the newly amended Law on Enterprises consists of new regulations, which were made in the direction of minimizing unnecessary procedures while ensuring the “right to freedom of enterprise in the sectors and trades that are not prohibited by law” as defined in Chapter 2, the 2013 Constitution.

Currently, the National Assembly is studying and elaborating legal documents proposed by functional agencies, which include Law on Association, Law on the Right to Protest, and so on. The promulgation of these laws is only a matter of time and resources.

There have been considerable changes in Vietnam-U.S. ties since the end of the Cold War. Vietnam and U.S. have become equal partners after normalization of Vietnam-U.S. diplomatic relations in July 1995. The official visit to America paid by the President of the Socialist Republic of Vietnam Truong Tan Sang in July 2013 has ushered in a new period of sustainable dynamic development between the two nations. The establishment of Vietnam-U.S. Comprehensive Partnership marked an important milestone in their relationship. The following official visit to America of General Secretary Nguyen Phu Trong in July 2015 and President Barack Obama’s official visit to Vietnam in May 2016 on the basis of political trust and new vision have widened areas of cooperation between the two countries. Nowadays, Vietnam-U.S. ties are developed in the principle of respecting the interests of each other, equality and mutual benefits.

It can be said that, Vietnam-U.S. relationship over the past few years and today has grown and prospered. The promulgation of the Magnitsky Act goes against cooperative principles among countries in general, Vietnam-U.S. Comprehensive Partnership in particular. Vietnam is a sovereign state, so it will not allow anyone, or any governments to impose their legal mechanisms on its citizens (if there is no agreement with Vietnam). The Magnitsky Act, therefore, is unfeasible with Vietnam./.

The Paris Agreement on Ending the War and Restoring Peace in Vietnam (Paris Peace Accords) was a glorious victory of Vietnam’s diplomacy in the Ho Chi Minh era. 45 years have elapsed, but the event is still of great theoretical and practical value to diplomatic affairs in general, and to defence diplomacy in particular in the cause of Homeland construction and defence today